1. This is an appeal against the judgment of the District Judge of Sylhet, dated the 2nd of April 1907. It is instituted on behalf of the plaintiffs while the defendants have filed cross-objections but have not pressed them.
2. The facts giving rise to the present appeal are that there is an Akhra with a temple dedicated to the idol Jugganath situated in the town of Sylhet. The last Mohunt of this Akhra was one Mukanda Das. He died on the 20th of July 1898 (13th Sravan 1305 B.S.) and on the same date executed a Will, appointing five persons as his executors namely, Kali Sankar Bajpai, Joari Mal, Tushtyal, Manikya Chandra Banikya, Raj Kumar and Krishna Charan Sarma. Under the Will he also appointed Ram Sevak Bairagi and Narayan Brajabasi as pujaris.
3. Mukanda Das further empowered the above-named five executors to appoint fresh pujaris, if the two above-named failed to perform the puja properly.
4. After the death of Mukanda Das, the executors applied for probate of the Will, and obtained it, although Ram Lochan Das, plaintiff No. 1, opposed the grant. On the 7th of August 1905 Ram Lochan Das and Krishna Das instituted the present suit after obtaining sanction under Section 539 of the Civil Procedure Code. There are five defendants in the present suit, four of whom are the surviving executors, and the fifth the pujari whom they have appointed to carry on the worship in the Jugganath temple. After the filing of the present suit, [Ram Lochan Das, plaintiff No. 1, having died, Krishna Das, plaintiff No. 2, was allowed to proceed with the suit under an order dated the 19th of September 1905.
5. The plaintiffs allege that there is an Akhra at Nagor to which the Jugganath Akhra in dispute is subordinate, and that the Mohunt of the superior Akhra appoints a Mohunt for the Jugganath Akhra; that the plaintiff No. 1 was the Mohunt of the superior Akhra and plaintiff No. 2 was his disciple, that Mukanda Das had no right to make a Will with regard to the property of the Jugganath Akhra, and that defendants 1 to 4 are, therefore, not legally in possession of the property and are not proper persons to manage the temple and its property. The plaintiffs pray for a declaration that the property mentioned in the schedule to the plaint belongs to the Jugganath idol; for the appointment of one of the plaintiffs or of any other suitable person as trustee for the performance of the devaseva of the said deity and the management and preservation of the estate. They also pray that an injunction be issued on the defendants preventing them from interfering with the worship of the deity or the management of the properties, and their last prayer is that a scheme for worship of the temple be framed.
6. The defendants on the other hand contend that the Jugganath Akhra is not subordinate to that of Nagore, they further deny that the properties are held in trust for religious purposes or that Mukanda Das was a trustee for the idol Jugganathji. The defendants have made other allegations also which are not relevant to the present appeal.
7. The learned District Judge has framed 20 issues for decision, but the present appeal as a matter of fact is confined to the two points that the appellant who belongs to Vaisnab sect should have been appointed to manage the properties attached to the temple and supervise the worship of the deity, and that the defendants who are not ascetics should not have been appointed to that office. The plea that the appellant is entitled as of right to the appointment, based on the alleged subordination of this Akhra to the Nagor Akhra, has been abandoned.
8. The learned District Judge, in his judgment, has declared that the properties mentioned in the schedule attached to the plaint belong to the idol Jugganathji and has further formulated a scheme under which he has appointed the first four defendants trustees for the management of the Akhra and its properties. He has also ordered that within six months the trustees must appoint a Mohunt of the Vaisnab Swami sect if available or a pujari belonging to that, sect in addition to or in place of the present pujaris. There are other directions in the said scheme which are not attacked by the appellant. The appellant contends that inasmuch as the defendants deny the dedication of the properties in dispute to the idol Jugganathji and assert the property to be the personal property of Mohunt Mukanda Das, with whose dealings as absolute owner no one could interfere, they are not fit persona to be appointed custodians of the income of the properties attached to the Jugganath Akhra and supervisors of the worship of the deity. The appellant also contends that the properties attached to the Akhra not being properties belonging to Mukanda Das, he had no right to make a Will dealing with the income of the properties as if they belonged to him.
9. From the documents on the record it is clear that this Akhra has had always as its head a Mohunt. This appears to have been the custom followed in the, appointment of six previous Mohunts including Mukanda Das the last Mohunt.
10. In the scheme above-mentioned, the Lower Court has not appointed any Mohunt and such an appointment has been left absolutely in the hands of the executors. These executors have claimed the property as the personal property of the last Mohunt and deny its dedication to the idol. It is not likely therefore, that they will over appoint a Mohunt. We are of opinion that for the preservation, and good management of the properties in question, and for the continuance of the worship of the idol Jugganathji, the persons least fitted to perform the above duties are the executors, as after the allegation made by them it is not reasonable to expect them to allow the rights of the idol to prevail over their alleged personal rights.
11. In the above circumstances we are of opinion that for the preservation and better management of the properties and for the continuance of the worship of the deity, it is necessary that in accordance with the traditional custom of this Akhra a Mohunt should be appointed. It seems from the scheme referred to above that the learned District Judge was also of opinion that these executors who were appointed trustees under the Will, should, within six months appoint a Mohunt belonging to the Vaisnab Swami sect and should make over the management to him.
12. The cross-appeal has not been pressed and hence the respondents are bound under the District Judge's scheme to appoint a Mohunt of the Vaisnab Swami sect, if available. But we do not think that the matter of the appointment of a suitable Mohunt should have been left to them as after the allegations made by them it is not likely that they will ever appoint a Mohunt.
13. It is contended on behalf of the appellants that the original of Ex. L which is a certified copy of the Will of Munkanda Das dated the 20th July 1898, was no Will under the Probate and Administration Act, as the word 'Will' is defined in that Act to mean the legal declaration of the intentions of the testator with respect to his property which he desires to be carried into effect after his death.' It is not seriously disputed before us that the properties attached to the Akhra in question really belong to the deity Jugganathji; and hence under the definition of the expression 'Will' the properties attached to the Akhra cannot by any stretch of imagination be treated as properties belonging to the late Mohunt Mukanda Das. We do not think that the late Mohunt Mukanda Das had any power to make any testamentary disposition of the properties belonging to the Akhra in question. The Will in question amounts simply to a letter of appointment, appointing certain persons trustees and pujaris. It is obvious, therefore, that there was no disposition of any property.
14. We, therefore, think that Ex. L strictly speaking was not a Will in the terms of the definition of that expression in the Probate and Administration Act. In the view that we have taken of this document, we are supported by the case of Chaitanya Gobinda Pujari Adhicary v. Duyal Gobinda Adhicary 9 C.W.N. 1021.
15. On behalf of the respondents it is contended that Mukanda Das, the last Mohunt, had full power to make the Will in question, and in support of this contention, we are referred to a ruling of their Lordships of the Privy Council in the case of Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Devi 8 C.W.N. 809. But what their Lordships held was not that properties dedicated to the idol vest in the shebait but that the possession and management of property dedicated to an idol belonged to the skebait. This carried with it the light to bring whatever suits were necessary for the protection of the property and every such right of suit was vested in the shebait and not in the idol. This case was one which hinged on the question whether the claim was saved from limitation by Section 7 of the Limitation Act, 1877, by reason of the shebait's minority and it was held that where the right to sue accrued when the shebait was a minor, the case fell within the clear language of Section 7 of the Limitation Act, and the shebait might institute a suit after coming of age as provided in that section. It was not a case in which there was any question whether the dedicated properties belonged to the shebait or to the idol or whether the shebait could dispose of the property by Will in any manner he liked as property belonging to him.
16. Nor does the case of Mabatullah Nasya v. Nalini Sundari Gupta 10 C.W.N. 42 help the appellant. This case does not go further, than enunciating that the possession and management of dedicated property belongs to the shebait and the shebait as such is entitled to bring a suit for rent. It does not lay down that dedicated property vests in the shebait for the time being or that he can dispose of it by Will in any manner he likes.
17. Our attention has been directed to the case of Mahanth Ramji Dass v. Lachhu Dass 7 C.W.N. 145. It was held in that case that the succession to property left by the deceased head of a religious institution depends upon custom and practice, which must be proved by evidence in each case and cannot be altered by act of Mohunt inconsistent with the custom. It appears from the various documents proved in this case that as a matter of fact the Mohunts have always been appointed in succession by their predecessors.
18. On a full consideration of the whole case, we are of opinion that Mohunt Mukanda Das had no power in law to make such a Will as Ex. L. He does not name any successor as Mohunt in his place, but appoints trustees and pujaris and treats the properties attached to the Akhra as if they belonged to himself. We do not consider that in law or according to the custom he had any authority to act thus.
19. After giving due consideration to the oral and documentary evidence produced in this case, we are of opinion that the learned lower Court should not have left the appointment of a Mohunt to the trustees in question. We, therefore, remand the case to the lower Court to amend the scheme framed by the Judge under Section 569 by appointing a suitable person to be Mohunt of the Akhra in question. In carrying this direction into effect he might well consult the Mohunts of other Akhras or asthals of the same sect in the district and appoint their nominee provided that his qualifications are consistent with the tradition of this particular Akhra. The lower Court will be at liberty to appoint the appellant, if in its opinion the appellant is a suitable person; but in this matter we do not desire to restrict the Court's discretion in any way.
20. In these circumstances the first seven paragraphs of the scheme become superfluous and are set aside and remaining paragraphs will require reconsideration and redrafting though we may say that they appear to us to be in principle judicious.
21. Accordingly the decree of the District Judge will be set aside and the case remanded to the lower Court to be disposed of in accordance with the above directions. We do not think it necessary to pass any orders as to costs beyond saying that if the appellant is appointed Mohunt by the District Judge he will be entitled to realise his costs from the estate. If he is not so appointed he will not be entitled to costs.